Earlier this week, the Supreme Court remanded Spokeo v. Robins to the Ninth Circuit on grounds that Article III requires “concrete” harm in order to maintain an action in federal court. We have been following the case here on the blog because, as noted previously, the Ninth Circuit’s decision in Spokeo relied on Sixth Circuit jurisprudence and, in particular, the Sixth Circuit’s decision in Beaudry v. TeleCheck Servs. As recently as last month, Spokeo’s reliance on Beaudry was also noted by Judge Griffin’s opinion in Brackfield & Assocs. P’ship v. Branch Banking & Tr. Co., which pointed out in a footnote that Congress’s power to create rights of action where the only injury-in-fact is the violation of that statutory right was currently up for debate.
After the Supreme Court’s decision in Spokeo, however, the contours of the standing debate have changed and so has the law in the Sixth Circuit, because Spokeo held that Article III requires a plaintiff to suffer “concrete” harm (which is not a requirement that Congress can erase). To be sure, just how high of a hurdle this proves to be in practice remains to be seen. As an initial matter, though, courts in the Sixth Circuit must consider whether the plaintiff has suffered some form of actual harm irrespective of whether or not the statute has been violated with respect to that plaintiff. In addition, there are also derivative consequences to Spokeo that could ripple through the law.
One such potential area is class certification. Part of the logic from the Sixth Circuit’s decision in Beaudry involved cases where individual issues of actual harm were not a barrier to class certification because Congress’s statutory scheme provided for statutory damages without proof of actual injury. Accordingly, in addition to analyzing the plaintiff’s alleged injuries to determine whether they are “concrete,” courts and practitioners in the Sixth Circuit will have to work out Spokeo’s impact on questions of class certification as well.